Industrie Aeronautiche e Meccaniche Rinaldo Piaggio SpA contra International Factors Italia SpA (Ifitalia), Dornier Luftfahrt GmbH y Ministero della Difesa.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Wathelet
• ECLI: ECLI:EU:C:1999:313
• Docket Number: C-295/97
• Date: 17 June 1999
• Procedure Type: Reference for a preliminary ruling

Judgment of the Court (Fifth Chamber) of 17 June 1999. - Industrie Aeronautiche e Meccaniche Rinaldo Piaggio SpA v International Factors Italia SpA (Ifitalia), Dornier Luftfahrt GmbH and Ministero della Difesa. - Reference for a preliminary ruling: Tribunale di Genova - Italy. - State aid - Article 92 of the EC Treaty (now, after amendment, Article 87 EC) - New aid - Prior notification. - Case C-295/97.

European Court reports 1999 Page I-03735

Summary Parties Grounds Decision on costs Operative part

Keywords

1 Preliminary rulings - Jurisdiction of the Court - Limits - State aid - Role of the national courts - To ensure that the rights of individuals are fully safeguarded - Possibility of consulting the Commission or of making a reference to the Court for a preliminary ruling

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Arts 93(3) and 177 (now Arts 88(3) EC and 234 EC))

2 State aid - Concept - Application to large industrial undertakings which are insolvent of a system derogating from the rules of ordinary law relating to insolvency - Covered - Conditions

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC))

3 State aid - Existing aid and new aid - Notification to the Commission - Implementation before the Commission decision - Prohibited - Scope of that prohibition

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Art. 93 (now Art. 88 EC))

Summary

1 Within the framework of proceedings brought under Article 177 of the EC Treaty (now Article 234 EC), the Court does not have jurisdiction to interpret national law or to give a ruling on the compatibility of a national measure with Community law.

However, as regards the review of Member States' compliance with their obligations under Article 92 of the Treaty (now, after amendment, Article 87 EC) and Article 93 thereof (now Article 88 EC), a national court may, in order to determine whether a State measure introduced without taking account of the preliminary examination procedure laid down in Article 93(3) of the Treaty should have been subject to that procedure, have cause to interpret the concept of aid contained in Article 92 of the Treaty. If it has doubts as to whether the measure in question should be classified as State aid, it may ask the Commission for clarification on that point or, in accordance with the second and third paragraphs of Article 177 of the Treaty, it may or must refer a question to the Court for a preliminary ruling on the interpretation of Article 92 of the Treaty.

2 The concept of aid is wider than that of a subsidy because it embraces not only positive benefits, such as subsidies themselves, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict sense, are similar in character and have the same effect. Moreover, the expression `aid', within the meaning of Article 87(1) of the Treaty (now, after amendment, Article 92(1) EC), necessarily implies advantages granted directly or indirectly through State resources or constituting an additional charge for the State or for bodies designated or established by the State for that purpose.

Application of a system derogating from the rules of ordinary law relating to insolvency, for the benefit of large industrial undertakings in difficulties which owe particularly large debts to certain, mainly public, classes of creditors, is to be regarded as giving rise to the grant of State aid, within the meaning of Article 92(1) of the Treaty, where it is established that the undertaking

- has been permitted to continue trading in circumstances in which it would not have been permitted to do so if the rules of ordinary law relating to insolvency had been applied, or

- has enjoyed one or more advantages, such as a State guarantee, a reduced rate of tax, exemption from the obligation to pay fines and other pecuniary penalties or de facto waiver of public debts wholly or in part, which could not have been claimed by another insolvent undertaking under the application of the rules of ordinary law relating to insolvency.

3 It is clear from both the terms and purposes of Article 93 of the Treaty (now Article 88 EC) that the concept of existing aid within the meaning of Article 93(1) embraces aid which existed before the entry into force of the Treaty and aid which could be properly put into effect under the conditions laid down in Article 93(3) thereof, including aid notified to the Commission but in respect of which the Commission has not yet adopted a position, after a reasonable length of time has elapsed for reflection and investigation, as regards the compatibility of the aid planned with the common market, as is clear from the Court's interpretation of Article 93(3) in Case 120/73. On the other hand, measures to grant or alter aid, where the alterations may relate to existing aid or to initial plans notified to the Commission, must be regarded as new aid subject to the obligation of notification laid down by Article 93(3).

Consequently, where it is established that a system derogating from the rules of ordinary law relating to insolvency is in itself capable of giving rise to the grant of State aid within the meaning of Article 92(1), that system cannot be put into operation unless it has been notified to the Commission and, if it has been so notified, before the Commission has made a decision acknowledging that the aid plan is compatible with the common market, or, if the Commission takes no decision within a period of two months from the notification, before that period has expired.

Parties

In Case C-295/97,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Tribunale di Genova (Italy) for a preliminary ruling in the proceedings pending before that court between

Industrie Aeronautiche e Meccaniche Rinaldo Piaggio SpA

and

International Factors Italia SpA (Ifitalia), Dornier Luftfahrt GmbH, Ministero della Difesa

on the interpretation of Article 92 of the EC Treaty (now, after amendment, Article 87 EC),

THE COURT

(Fifth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, P. Jann, C. Gulmann, D.A.O. Edward and M. Wathelet (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- Industrie Aeronautiche e Meccaniche Rinaldo Piaggio SpA, by Tomaso Galletto, of the Genoa Bar,

- Dornier Luftfahrt GmbH, by Antonio Fusillo and Alessandro Fusillo, both of the Rome Bar, and Gianfranco Nasuti, of the Genoa Bar,

- the Italian Government, by Umberto Leanza, Head of the Foreign Litigation Department at the Ministry of Foreign Affairs, acting as Agent, assisted by Oscar Fiumara, Avvocato dello Stato,

- the Commission of the European Communities, represented by Gérard Rozet, Legal Adviser, and Paolo Stancanelli, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Industrie Aeronautiche e Meccaniche Rinaldo Piaggio SpA, represented by Tomaso Galletto and Ivano Cavanna, of the Genoa Bar, Dornier Luftfahrt GmbH, represented by Antonio and Alessandro Fusillo, the Italian Government, represented by Oscar Fiumara, and the Commission, represented by Paolo Stancanelli, at the hearing on 27 January 1999,

after hearing the Opinion of the Advocate General at the sitting on 4 March 1999,

gives the following

Judgment

Grounds

1 By order of 29 July 1997, received at the Court on 11 August 1997, the Tribunale di Genova (District Court, Genoa) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) two questions on the interpretation of Article 92 of the EC Treaty (now, after amendment, Article 87 EC).

2 The questions were raised in proceedings between Industrie Aeronautiche e Meccaniche Rinaldo Piaggio SpA (`Piaggio') and the German company Dornier Luftfahrt GmbH (`Dornier') concerning the repayment of a sum of ITL 30 028 894 382 paid by Piaggio to Dornier.

3 Piaggio bought three aircraft from Dornier for the Italian armed forces. In payment, as from December 1992, Piaggio made various transfers and assignments in favour of Dornier.

4 By decree of 28 November 1994, adopted jointly by the Ministers for Industry and the Treasury...